Schwabe in the Field: Lawsuits Challenge EPA's WOTUS Rules
Industry plaintiffs, including the Washington Cattlemen's Association and other livestock organizations and property owners, filed suit against the U.S. Environmental Protection Agency ("EPA") and U.S. Army Corps of Engineers (the "Corps") on July 15, 2015, in federal district court for the district of Minnesota. The group is challenging the agencies' rulemaking under the Clean Water Act ("CWA") generally referred to as the waters of the U.S. or WOTUS. For more information on the impact these rules will have on landowners, please see the Schwabe in the Field article "Do the Clean Water Rules Matter?"
The plaintiffs' complaint indicates that the final rule extends Clean Water Act jurisdiction to water bodies not intended to be regulated by the CWA, including, among other things, all tributaries with an ordinary high watermark and isolated waters, as well as the wet areas adjacent to these water features. The group further challenges the rulemaking process, claiming it lacked the notice and comment procedure required by the federal Administrative Procedures Act.
A larger group of state and national trade and farming organizations, including the National Cattlemen's Beef Association and the American Farm Bureau Federation, have joined to file a similar lawsuit against the EPA and Corps challenging the WOTUS rules in the Fifth Circuit. This suit challenges the rules on many grounds, including the concern that the rules improperly expand the agencies' jurisdiction over waters not intended to be covered by the CWA. The group is asking the court to declare the WOTUS rules as unlawful and vacate them.
Also challenging the new WOTUS rules are environmental organizations including the Waterkeepers Alliance, Center for Biological Diversity, Center for Food & Safety, and Turtle Island Restoration Network. These groups challenge the new WOTUS rules because they say the rules creates loopholes for industry users to exclude water that should be jurisdictional under the CWA.
With environmental groups claiming the rules "gut" the CWA, and industry groups indicating the rules are overly inclusive and unreliably vague, the future of the rules is uncertain at best.